On July 10, 2003, Alaska amended its 1997 Alaska Trust Act (the “2003 Bill”) in an effort to stay in the forefront of the growing list of states seeking to generate trust business by providing settlors with creditor protection and estate freeze legislation. This type of legislation attempts to rival that offered by certain offshore jurisdictions. The 2003 Bill makes Alaska more attractive as an domestic asset protection situs. As a state in the United States, however, Alaska falls short of providing the ultimate protection offered by certain offshore jurisdictions – lack of U.S. court power to upset asset protection planning.
On March 22, 2003, Utah joined the growing list of states which have enacted asset protection trust legislation. This article provides a review and critique of those provisions of the Utah legislation which pertain to asset protection. Trusts which are subject to the new legislation will be referred to herein as “Utah trusts”.
In a properly structured asset protection plan, you don’t have to lose control. A typical asset protection plan that effectively guards your personal assets works like this:
With jury awards ever-increasing and malpractice coverage dwindling in many states, many physicians are anxious about credit protection. Moreover, malpractice lawsuits are not the only threat to your wealth.
Because the US court system often is unpredictable, the key to truly effective asset protection is to remove the ability to reach the assets. If an offshore trust has been properly structured and implemented, and is holding cash and marketable securities offshore, it will be impossible for any creditor to reach those assets.
In response to the deficiencies in domestic trust law, and seeking to obtain potential benefits from estate freeze structures, certain State legislatures have introduced “protective” features in their trust legislation.
There is now available a superior trust structure in which a single-member Nevis limited liability company (LLC) is used in combination with a Cook Islands trust.
Usually articles and studies concerning offshore trusts have focused on their use for asset protection. However another, very important, use of a certain type of offshore trust, is to effect estate tax savings. This can be accomplished by ‘freezing’ the value of trust assets vis-a-vis the settlor’s estate at current values. Result? Any future growth in asset values will escape US federal estate taxation, thus increasing the amounts received by children and other beneficiaries. A variation of this technique can also be used for non-resident aliens owning US real estate, or those wishing to immigrate to the United States, to practically eliminate any US estate tax on death.
Financially savvy US clients with sizable portfolios look to shield their investments from unexpected market fluctuations by portfolio diversification, and from creditor attacks by using asset protection plans that include offshore trusts. They may also seek to minimize the tax impact of their investments through the use of annuity products. Having a client’s offshore trusts purchase appropriate offshore deferred variable annuities can achieve the desired diversification and performance, while minimizing the current tax burden and diminishing threat of future litigation.